93 Decision Citation: BVA 93-20050
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-02 937 ) DATE
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THE ISSUES
1. Entitlement to service connection for residuals of a stress
fracture of the right tibia.
2. Entitlement to service connection for facet arthropathy of the
spine at the L-3 level.
3. Entitlement to an increased (compensable) evaluation for
residuals of a stress fracture of the left pubic rami.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
E. A. Artman, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1989 to April 1990.
This matter comes before the Board of Veterans' Appeals (Board) on
appeal from rating decisions issued in June 1990 and in September
1990 from the Houston, Texas, Regional Office (RO) of the Department
of Veterans Affairs (VA). The veteran filed a notice of disagreement
with the denials of her claims of service connection for a stress
fracture of the right tibia, facet arthropathy of the spine at the
L-3 level, and varicose veins of the right leg; the notice was
received by the RO in January 1991. The veteran also expressed her
disagreement in the notice with the noncompensable evaluation which
had been assigned to her for service-connected residuals of a stress
fracture of the left pubic rami. A statement of the case was issued
in May 1991. A substantive appeal was received from the veteran in
July 1991. A VA Form 1-646 was received in August 1991 from the
veteran's representative, Texas Veterans Commission. A supplemental
statement of the case was issued in November 1991. The case file was
received and docketed by the Board in March 1992. A May 1992 Board
decision remanded the case to the RO for additional development of
the evidence.
After receipt of additional medical evidence, the veteran was granted
service connection for varicose veins of the right leg in a January
1993 rating decision. This decision also included a review of her
other claims on appeal, all of which were again denied. A
supplemental statement of the case was issued in January 1993. A
VA Form 1-646 was submitted by the veteran's representative in April
1993. The claims file was then received and docketed by the Board in
August 1993.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that she in entitled to disability compensation
for residuals of fractures to her right tibia and left pubic rami and
for facet arthropathy of the spine at the L-3 level. She claims
that, in addition to her service-connected fracture of the left pubic
rami, she incurred a fracture to her right tibia and facet
arthropathy of the spine while in the service. She contends that
compensation is warranted because of the pain she continues to
experience in both of her legs and her back as a result of these
conditions.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), has reviewed and considered all of the evidence and
material of record in the veteran's claims file. The Board has
determined that only those items listed in the "Certified List"
attached to this decision and incorporated by reference herein are
relevant evidence in the consideration of the veteran's claim. Based
on its review of the relevant evidence in this matter, and for the
following reasons and bases, it is the decision of the Board that the
preponderance of the evidence is against the claims of service
connection for residuals of a stress fracture of the right tibia or
for facet arthropathy of the spine at the L-3 level. The
preponderance of the evidence is for the claim for an increased
evaluation of 10 percent for residuals of a stress fracture of the
left pubic rami.
FINDINGS OF FACT
1. All evidence necessary for a proper disposition of the veteran's
appeal has been obtained by the originating agency.
2. A September 1992 VA examination contains no objective, clinical
evidence of the veteran's claimed residuals of a stress fracture of
the right tibia or her claimed facet arthropathy of the spine at the
L-3 level.
3. Symptoms of the veteran's service-connected residuals of a stress
fracture of the left pubic rami are best described as subjective
complaints of pain; a September 1992 examination documents that
pelvic pain was elicited upon deep palpation with pain on motion in
extension.
CONCLUSIONS OF LAW
1. The veteran has no residual disability due to a stress fracture
of the right tibia which was incurred in or aggravated by service.
38 U.S.C.A. §§ 1131, 5107, 7104 (West 1991); 38 C.F.R. § 3.303
(1992).
2. The veteran has no facet arthropathy of the spine due to a
disease or injury which was incurred in or aggravated by service.
38 U.S.C.A. §§ 1131, 5107, 7104 (West 1991); 38 C.F.R. § 3.303
(1992).
3. An increased evaluation of 10 percent for residuals of a stress
fracture of the left pubic rami is warranted. 38 U.S.C.A. §§ 1154,
5107, 7104 (West 1991); 38 C.F.R. § 3.102, Part 4, Code 5299-5294
(1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board finds that the veteran's claim is well grounded within the
meaning of 38 U.S.C.A. § 5107 (West 1991). A well-grounded claim is a
plausible claim, one which is meritorious on its own or capable of
substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Also, in
light of the RO's compliance with the Board's instructions contained
in its May 1992 remand, we conclude that VA has met its duty to assist
the veteran in the development of facts pertinent to her claim, as
mandated by § 5107.
I.
With regard to the two claims for service connection, a review of
available service medical records shows that the veteran first
complained of lower back and leg pain in September 1989. A September
14, 1989 sick call report documents the veteran's claim that her pain
began after being thrown on her back during an exercise in hand-to-
hand combat. Another report, dated October 14, 1989, includes the
annotation that X-ray studies were negative for any fractures and
shows a diagnosis of lumbosacral strain. However, as discussed by the
veteran in a lengthy notice of disagreement, a bone scan was performed
in October 18, 1989, the results of which included an impression of
stress-related changes in the distal right tibia and facet arthropathy
of the spine at the L-3 level. The record discloses that the veteran
was treated for a left pelvic and a right tibia stress fracture after
this test and continued to complain of leg pain as late as in March
1990. However, no complaints or annotation concerning the veteran's
leg or back condition appears on her April 1990 separation
examination.
The only other medical evidence received consists of a report
referable to a VA examination performed in September 1992. At this
examination the veteran complained of ongoing pain in the lower back,
pelvis, and both legs; the leg pain primarily experienced in the right
tibia. She felt that her condition had deteriorated since service and
limited her ability to stand for prolonged periods of time (no more
than 45 to 60 minutes), walk long distances (only between a half and
one mile), drive (could sit for only 20 to 30 minutes), and lift heavy
objects (limited to 35 pounds).
Clinical findings of the VA examination revealed normally preserved
curvatures of the back, percussion pain over the lumbosacral segment,
and pain on deep palpation of the left sacroiliac area and right
gluteal area extending down to the knee and calf posteriorly. A
Lasègue's sign was positive on the right side at 45 degrees and on
the left at 30 degrees with worsening on dorsiflexion of the toes
bilaterally. Reflexes were found to be normal, present and equal at
2+ bilaterally. Tip toe and heel walking was also recorded to be
normal. The range of motion of the lumbar spine was essentially
normal with some pain elicited upon extension, right and left flexion
and anterior flexion. An examination of the pelvis disclosed pain on
pressure over the symphysis, but no pain was elicited in that area on
bilateral pressure over the iliac crests and hip joints. An
examination of the legs proved to be unremarkable.
X-ray studies of the lumbosacral spine, pelvis, right tibia and
fibula showed no abnormalities. A bone scan, also performed in
September 1992, revealed no evidence of fractures in the locations
recounted by the veteran in her medical history. Based on a review
of the clinical findings, the examining physician listed his
diagnosis as "status post stress fracture of pelvis and right tibia
plus facet arthropathy of L3 vertebra by history." Later, he added
that a scheduled bone scan had been negative.
II.
By law, service connection may be established for disability
resulting from an injury suffered or disease contracted in the line
of duty. 38 U.S.C.A. § 1131 (West 1991). Each disabling condition
shown by a veteran's service records, or for which she or he seeks a
service connection, must be considered on the basis of the places,
types and circumstances of the service as shown by service records,
the medical records, and all pertinent medical and lay evidence.
38 C.F.R. § 3.303(a) (1992).
A.
In the present case, service medical records indicate that the
veteran may have injured her right tibia or incurred facet
arthropathy of the spine while in the Army; however, the evidence,
when viewed in its entirety, does not demonstrate that any resulting
disability is now present. Before service connection can be
established for any injury or disorder incurred in service, it must
be shown that the veteran presently has some disability which is the
result of such injury or disease. The findings of the September 1992
examination show some subjective indications of the claimed
disabilities, but provide no objective, clinical evidence to support
the veteran's complaints of pain and limitation of movement.
Moreover, specialized testing in the way of X-ray studies and a bone
scan showed negative results for the claimed disorders. What
evidence of painful movement was elicited by the examination appears
to be just as likely to be attributable to the veteran's service-
connected residuals of a stress fracture of the left pubic rami,
since there was pain elicited on pressure applied over the symphysis.
For these reasons, we find that the preponderance of the evidence is
against her claims of service connection for residuals of a stress
fracture of the right tibia and facet arthropathy of the spine at the
L-3 level.
B.
Turning to a consideration of her claim for an increased, or
compensable, evaluation for her service-connected residuals of a
stress fracture of the left pubic rami, we note that disability
evaluations are based upon the average impairment of earning capacity
as contemplated by a schedule for rating disabilities. 38
U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1992). Under the
rating schedule, a 10 percent evaluation for a sacroiliac injury or
weakness is warranted where characteristic pain on motion is
exhibited. A noncompensable evaluation is assigned when only slight
subjective symptoms are presented. 38 C.F.R. Part 4, § 4.71a, Code
5294 (1992). The veteran was assigned a rating under this provision
because, of all the provisions within the schedule, it most nearly
approximated the disabling condition for which she is service
connected. See 38 C.F.R. § 4.20 (1992).
As discussed above, the veteran incurred an injury to her pelvis when
she was thrown on her back during a training exercise. Results of
the October 1989 bone scan report included an impression of a stress
fracture located at the left superior ramus and at the junction of
the left symphysis pubis and inferior pubic ramus. On the basis of
this report, service connection was granted for residuals of the
fracture in a June 1990 rating action. The veteran contends in her
July 1991 substantive appeal that she currently experiences pain from
this injury and that her condition prevents her from obtaining
employment.
The veteran's own statements provided to the examiner at the
September 1992 examination indicate that her daily activity is only
slightly hindered by any pain she may experience. As noted above,
she is able to stand, walk and drive for significant periods of time
before she must rest. Most notably, she stated that she is able to
lift a weight of up to 35 pounds. The clinical findings of this
examination correlate with her comments, in the sense that some pain
was elicited from the left sacroiliac area and over the symphysis
upon deep palpation, but no pelvic pain was otherwise recorded in the
course of the examination. As indicated above, there was noted some
pain on motion in extension.
Given such evidence, we conclude that the veteran's symptoms are best
described as reflective of characteristic pain on motion.
Accordingly, her claim for an increased evaluation of 10 percent is
granted.
ORDER
Service connection for residuals of a stress fracture of the right
tibia is denied, as is service connection for facet arthropathy of
the spine at the L-3 level.
An increased evaluation of 10 percent for residuals of a stress
fracture of the left pubic rami is granted, subject to the
regulations controlling disbursement of monetary benefits.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
STEPHEN L. WILKINS (Member temporarily absent)
DANIEL J. STEIN
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting assignment
of an additional member to the Section when the Section is composed
of fewer than three Members due to absence of a Member, vacancy on
the Board or inability of the Member assigned to the Section to serve
on the panel. The Chairman has directed that the Section proceed
with the transaction of business, including the issuance of
decisions, without awaiting the assignment of a third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a
decision of the Board of Veterans' Appeals granting less than the
complete benefit, or benefits, sought on appeal is appealable to the
United States Court of Veterans Appeals within 120 days from the date
of mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision which
you have received is your notice of the action taken on your appeal
by the Board of Veterans' Appeals.